Chen (Yan Ping) v Director of Public Prosecutions

1. [1]

   The plaintiff has applied by summons for leave to appeal from an interlocutory order made by a magistrate in proceedings on a charge of making a false accusation with intent to subject a person to investigation contrary to s 314 of the Crimes Act 1900 (NSW). The charge is being prosecuted summarily in the Local Court. The magistrate’s decision was to dismiss an application by the plaintiff for a permanent stay of the prosecution.

2. [2]

   In the alternative to seeking leave to appeal the plaintiff seeks from this Court an order quashing the magistrate’s decision and a declaration with respect to a legal issue that has arisen in the proceedings. The issue concerns the validity of a notice which was issued to the plaintiff requiring her to appear and give evidence before the Inspector of the New South Wales Crime Commission.

3. [3]

   The charge is being prosecuted by the first defendant, the Director of Public Prosecutions. The second defendant is the Local Court which has filed a submitting appearance.

The charge

1. [4]

   Section 314 of the Crimes Act is as follows:

2. [5]

   The charge laid against the plaintiff, in a Court Attendance Notice issued on 3 February 2017, is that:

3. [6]

   Detailed particulars of the charge have been provided in a Crown Case Statement. It is alleged that on 11 March 2014 the New South Wales Crime Commission executed search warrants at business and residential premises occupied by the plaintiff in central Sydney. One of the investigators who assisted in the search was Jiansong Wen, a forensic accountant attached to the Crime Commission’s Financial Investigations Department. In order to assist other investigators he translated some of the documents located during the search from Mandarin into English. At the end of the search one of the Crime Commission officers present served the plaintiff with a restraining order. This had been issued ex parte by the Court pursuant to the Criminal Assets Recovery Act 1990 (NSW). Jiansong Wen translated the order from English into Mandarin for the plaintiff.

4. [7]

   On 10 December 2015 proceedings against the plaintiff for confiscation of assets under the Criminal Assets Recovery Act were listed in this Court before Campbell J. The plaintiff appeared and it is alleged she stated in open court that on the day the search warrants were executed Jiansong Wen had solicited from her a bribe, in exchange for which he would “let [her] go”. Campbell J told her if she had such a complaint she should “bring it to the attention of the appropriate authorities”.

5. [8]

   It is alleged that later the same day the plaintiff sent an email to the Crime Commission in which she said that after investigators had left her apartment following the search Jiansong Wen had returned alone and told her:

6. [9]

   On 14 December 2015 the assets recovery proceedings were before Rothman J. It is alleged the plaintiff told his Honour on that date that Jiansong Wen:

7. [10]

   On 2 February 2016 the Inspector of the Crime Commission, appointed pursuant to s 61 of the Crime Commission Act 2012 (NSW), wrote to the plaintiff requesting that she provide a full statement of her allegations concerning Jiansong Wen. It is alleged the plaintiff replied by email on 28 March 2016, written in Mandarin, stating that some time after the investigators who had executed the warrants had left her apartment, Jiansong Wen returned alone and produced to her some of the documents which had been seized. The email continued as follows:

8. [11]

   On 26 May 2016 a letter on the letterhead of the “Office of the Inspector of the Crime Commission” was sent to the plaintiff. It was signed by Mr R Tumeth whose position and title were given under the signature as “Solicitor Assisting The Hon Graham Barr QC, Inspector, New South Wales Crime Commission”. The letter contained the following operative part:

9. [12]

   Pursuant to this notification the plaintiff attended before the Inspector initially on 31 May 2016 and then on 14 June 2016. On the latter occasion she gave evidence through an interpreter. She said that her daughter, aged 30, can read and write English and that she prepared the email of 10 December 2015 to the Crime Commission, in accordance with the plaintiff’s instructions given in Mandarin. The plaintiff said she had caused the email to be sent. The plaintiff also said she had typed the email of 28 March 2016 herself and caused it to be sent to the Inspector. The plaintiff reiterated in oral evidence before the Inspector her description of Mr Jiansong Wen soliciting a bribe substantially in accordance with her email of 28 March 2016.

10. [13]

    The Inspector issued a report dated 30 June 2016 in which he concluded that the plaintiff’s accusation against Mr Jiansong Wen was deliberately untruthful.

11. [14]

    The prosecution case is evidently being conducted upon the basis that the oral assertions in this Court on 10 and 14 December 2015, the emails of 10 December 2015 and 28 March 2016 and the further oral assertions in evidence before the Inspector on 14 June 2016 are all connected in time and content, in such a way as to constitute one continuing allegation of criminal misconduct by Mr Jiansong Wen. The prosecution alleges that this allegation was false to the plaintiff’s knowledge.

The stay application

1. [15]

   The charge was listed for hearing in the Local Court on 18 and 19 October 2017. However on 10 October 2017 the plaintiff filed a notice of motion seeking an order that the proceedings be permanently stayed. The notice of motion also sought “orders” for exclusion of three categories of documentary evidence. The hearing dates of 18 and 19 October 2017 were taken up with the question of a permanent stay. The learned magistrate reserved her decision. The questions of admissibility of evidence raised by the notice of motion were not reached and the substantive hearing of the charge did not commence.

2. [16]

   The application for a permanent stay was argued upon seven grounds, the first five of which asserted legal defects in the Inspector’s inquiry which were said to have resulted in it being conducted beyond power. The ultimate point of these grounds appears to have been ground 6, to the effect that the Director of Public Prosecutions’ consideration of the evidence given before the Inspector on 14 June 2016 and his report dated 30 June 2016 was “improper” because the inquiry had been a “nullity”. In the written submissions provided to the learned magistrate there is a significant gap in reasoning between the premise that the Director had considered material obtained through an Inspector’s inquiry which was beyond power and the conclusion that therefore the plaintiff could not have a fair hearing of the charge.

3. [17]

   The seventh ground advanced in support of a permanent stay was that “the proceedings are doomed to fail” because, so it was submitted, the tribunal of fact could not be satisfied beyond reasonable doubt that the plaintiff, in making any accusation, had intended that Mr Jiansong Wen be investigated for an offence, as opposed to being the subject of an inquiry by the Inspector.

4. [18]

   On 6 December 2017 the learned magistrate dismissed the application. Detailed reasons were given orally. The errors of law now asserted concern only the first ground which was argued in support of a stay, namely, that the letter of 26 May 2016 by which the plaintiff was required to attend before the Inspector and give evidence was not a notice from the Inspector himself but was from the signatory of the letter, Mr Tumeth. The plaintiff contends that only the Inspector had the statutory power to summon a witness and that, as the written notification was signed by someone other than the Inspector, that signatory had purported to exercise the statutory power. It is contended that this amounts to a purported delegation of the power from the Inspector to the signatory, where there was no statutory warrant for delegation.

The Inspector’s statutory power to summon a witness

1. [19]

   I refer in the past tense to the provisions of the Crime Commission Act by which the office of Inspector was created and by which his powers were defined, because those sections have since been repealed. Section 64 provided, in May 2016, as follows:

2. [20]

   For present purposes the relevant section of Division 1 of Part 2 of the Royal Commissions Act 1923 (NSW) is s 8:

3. [21]

   Section 65(1) of the Crime Commission Act provided for incidental powers of the Inspector, in these terms:

4. [22]

   Section 66 was concerned with staff and resources to enable the Inspector to exercise his functions. It provided that persons employed in the Public Service to assist him were to be subject to his control and direction. Subsection (2) empowered the Inspector to arrange for the use of the services of any staff or facilities of a government agency. Subsection (3) gave the Inspector the right to make reasonable use of the services of the staff or facilities of the Police Integrity Commission.

The reasons for decision in the Local Court

1. [23]

   The learned magistrate rejected a submission that provisions of the Crime Commission Act concerning delegation by the Commission to executive officers (such as s 15) had application to or a bearing upon the question of delegation by the Inspector. Her Honour’s reason for finding that the letter of 26 May 2016 to the plaintiff, signed by Mr Tumeth, was a lawful “notice in writing” to her for the purposes of s 8 of the Royal Commissions Act was that Mr Tumeth did not thereby purport to have made the decision to summon the plaintiff on his own authority, under delegation from the Inspector. Her Honour found that the Inspector had made the decision and the letter was notice in writing issued at his direction by Mr Tumeth.

2. [24]

   Her Honour’s reasons were expressed as follows:

Jurisdiction invoked by the summons filed in this Court

1. [25]

   The plaintiff’s application for leave to appeal is brought under s 53(3) of the Crimes (Appeal and Review) Act 2001 (NSW):

2. [26]

   The alternative claim for an order quashing the learned magistrate’s dismissal of the stay application invokes the Court’s jurisdiction under s 69 of the Supreme Court Act 1970 (NSW). The plaintiff relies upon subs (3) and (4) of s 69:

3. [27]

   The plaintiff’s claim for declaratory relief relies upon s 75 of the Supreme Court Act.

The plaintiff’s grounds

1. [28]

   Paragraph 6 of the grounds for relief set out in the further amended summons alleges that the following errors of law appear on the face of the record:

Section 69 of the Supreme Court Act

1. [29]

   For the purpose of invoking s 69 of the Supreme Court Act in the circumstances of this case the plaintiff must identify an error of law on the face of the record but she need not isolate a “question of law alone” (as is required to engage s 53(3)(b) of the Crimes (Appeal and Review) Act). The putative errors of law asserted in par 6 of the plaintiff’s grounds are mixed with or dependent upon findings of fact by the learned magistrate.

2. [30]

   Ground a (failure to find who had exercised the power to summon the plaintiff) is unsustainable. The learned magistrate clearly found that it was the Inspector who had exercised the power to summon the plaintiff. This appears from the following part of her Honour’s reasons:

3. [31]

   That same passage of the reasons also rebuts ground b (failure to give adequate reasons for finding who had summoned the plaintiff). Some additional reasoning is provided in an earlier part of the same paragraph, quoted at [24], where her Honour referred to the Inspector’s statutory entitlement to avail himself of the assistance of Police Integrity Commission personnel, which included Mr Tumeth. A failure adequately to state reasons can constitute an error of law on the face of the record but these reasons are in my view expressed with clarity.

4. [32]

   Ground c (failure to find that Mr Robert Tumeth summoned the plaintiff) is a putative error of fact-finding, not of law at all.

5. [33]

   Grounds d and e (finding that the letter of 26 May 2016 was a lawful notice to the plaintiff and failing to find that it was not) are not different from each other in substance. They assert error with respect to a mixed question of law and fact. These grounds inherently involve contentions regarding both the correct construction of s 8 of the Royal Commissions Act and the facts. As to the question of law involved, I consider the correct construction of s 8, which the learned magistrate evidently adopted and applied, is that it did not require that notice in writing to a witness should be signed by the Inspector himself. He could make the decision and then validly implement it by directing or authorising another to send out the document.

6. [34]

   Section 8 of the Royal Commissions Act, taken together with s 64 of the Crime Commission Act, empowers the Inspector to “summon” a witness “by notice in writing”. Section 8 refers to the “notice in writing” as a “summons” but neither Act specifies any particular form which the Inspector’s notice in writing must take.

7. [35]

   Notably, s 8 does not state that the written notice to the witness must be signed by the Inspector. In that respect the section may be contrasted with s 126 of the Criminal Procedure Act 1986 (NSW) which expressly requires that an indictment must be signed by one of three nominated officeholders or by a person authorised in writing by the Director of Public Prosecutions to sign indictments “for and on behalf of” the Director. That provision was applied in R v Halmi (2005) 62 NSWLR 263; [2005] NSWCCA 2 and again in R v Janceski (2005) 64 NSWLR 10; [2005] NSWCCA 281, where trials upon indictments which had not been signed by either of the statutory officers or by a person authorised in writing by the Director were held to have been nullities.

8. [36]

   Section 8 may also be contrasted with the legislation considered in Beaudesert Shire Council v Brewer [1982] Qd R 291. There the form in which a statutory notice was to be given was specified in regulations. The prescribed form indicated that the signature of the “Chairman; Clerk; or other authorised officer” of a local authority was required. This was regarded as sufficient to render invalid a notice which had been issued without the signature of any such person invalid.

9. [37]

   On the other hand in Evans v Tweed/Lismore Pastures Protection Board [1982] 2 NSWLR 908; (1982) 65 FLR 283 a form of rate notice was prescribed in regulations, concluding with the words “Secretary, Pastures Protection Board”. The form did not include any dotted line or similar indication that a signature was required to be affixed. Neither the Act nor the Regulations stated that the form had to be signed. It was held that a magistrate had made no error in treating an unsigned rate notice as valid.

10. [38]

    In Attorney General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299 the question was whether a prosecution under the Occupational Health and Safety Act 2000 (NSW) had been instituted “by an inspector”. Proceedings were commenced by filing in the District Court summonses with statements of facts in support. These documents were signed by a solicitor who identified himself as “Solicitor for the prosecutor”. The relevant inspector gave evidence but did not state that she approved the particular charges laid or the statements of facts. She said that the solicitor had applied on her behalf to have the defendants appear before the Court but did not say that she authorised the solicitor to apply for the orders which were made for the issue of summonses or that she authorised the applications to be based on the statements of facts which were filed.

11. [39]

    It was thus not established that the inspector had approved the charges which were laid and the Court (Bathurst CJ, Beazley P and Hoeben CJ at CL agreeing) held on that basis that the prosecution had not been instituted by the inspector. It was implicit in the reasoning of the Chief Justice at [90] that in the absence of an express requirement in the legislation for a document to be signed by the inspector, proceedings could be instituted by means of others issuing and filing documents provided that the inspector authorised the content:

12. [40]

    These four cases illustrate that a statute which confers a power to be exercised by the issue or filing of a document may or may not stipulate for the document to be authenticated by signature of the officeholder who exercises the power. Where such authentication is not stipulated, the document which evidences the exercise of the power will not be unlawful or ineffective on account of it being unsigned or signed by some person other than the officeholder on his or her behalf.

13. [41]

    On the view correctly adopted by her Honour, that the Inspector could make a decision pursuant to s 8 of the Royal Commissions Act to summon the plaintiff and validly implement it by directing or authorising another to sign and send out a notice in writing, the issue arose whether the Inspector had in fact decided that the letter of 26 May 2016 should be issued and directed Mr Tumeth to sign and send it, or whether he had purported to delegate the entirety of the decision to Mr Tumeth. Her Honour’s conclusion that the Inspector had exercised the power and that Mr Tumeth had acted at his direction was, at the least, well open.

14. [42]

    The evidence on the stay application showed that on 31 May 2016, when the plaintiff first attended in response to the letter of 26 May, the Inspector conducted a form of directions hearing in her presence and fixed 14 June 2016 for the hearing of her complaint. He required her to return on that day. On 14 June the Inspector proceeded to conduct his inquiry, taking evidence from the plaintiff and from Mr Jiansong Wen. From this course of events the inference was available, if not inescapable, that the notice to attend had been issued on the Inspector’s authority and at his direction. As her Honour said, there was no suggestion that Mr Tumeth purported to have decided to hold an inquiry or to issue the notice, either on his own authority or under any purported delegation of decision-making from the Inspector.

15. [43]

    It has not been argued, nor could it be, that there was no evidence to support the finding that the Inspector had exercised the power under s 8 to summon the plaintiff. There could only be an error of law in such a factual finding if there was no evidence for it.

16. [44]

    No error of law on the face of the record has been made out in terms of any of grounds a-e in par 6 of the further amended summons. There is no justification for an order quashing the refusal of a stay. The case is simple and clear and I do not need to consider whether relief under s 69 of the Supreme Court Act should be refused in the exercise of the Court’s discretion, to avert fragmentation of the criminal process.

Declaratory relief

1. [45]

   The declaration sought by the plaintiff under s 75 of the Supreme Court Act is that:

2. [46]

   This is a reference to the “notice in writing” by the letter of 26 May 2016, which s 8 itself terms a “summons”. I have already stated my view that under s 8 it was not required that the written notification from the Inspector should be signed by him and that it would be valid if he made the decision to summon the plaintiff and authorised or directed Mr Tumeth to sign and send the document. Therefore the declaration could only be made if I should find, contrary to the learned magistrate, that the Inspector did not in fact make the decision but that Mr Tumeth did.

3. [47]

   The power to grant declaratory relief is discretionary. Upon principles concerning restraint with respect to fragmentation of the criminal process I would not interfere in this prosecution in the Local Court by reviewing the evidence and drawing a conclusion of fact different from her Honour’s. That restraint is particularly appropriate where Parliament has provided an expressly limited avenue of appeal (by leave and on a question of law alone) from such an interlocutory decision and where there exist broad alternative avenues of appeal from a conviction at the conclusion of proceedings in the Local Court. The relevant finding by her Honour was, at the least, open to her. It is not a finding made in the absence of any evidence nor one that is conspicuously against the weight of evidence.

4. [48]

   In declining to reconsider the issue of fact, as would be necessary in order to make the declaration sought, I take into account the absence of any critical consequence for the proceedings even if the letter of 26 May 2016 was invalid. If the letter was not valid, if the answers given by the plaintiff under examination before the Inspector were therefore unlawfully obtained and if a discretion to exclude the answers under s 138 of the Evidence Act 1995 (NSW) should therefore be exercised in favour of the plaintiff, there would nevertheless remain in the prosecution case a substantial body of evidence to prove that she made the relevant accusation against Mr Jiansong Wen (on four occasions other than during the Inspector’s examination) and to prove the other elements of the offence. If, contrary to the learned magistrate’s conclusion, the plaintiff was summoned by the Inspector unlawfully, that has not rendered the prosecution incurably unfair.

Leave to appeal pursuant to Crimes (Appeal and Review) Act, s 53(3)(b)

1. [49]

   The first defendant accepts that her Honour’s decision to refuse a permanent stay was an interlocutory order within to s 53(3)(b) of the Crimes (Appeal and Review) Act. None of the alleged errors listed at items a-d of par 6 of the plaintiff’s grounds is a “question of law alone” which could engage s 53(3)(b). Each ground is a question either of fact or of mixed fact and law. In Williams v The Queen (1996) 166 CLR 278; [1986] HCA 88 at 287 Gibbs CJ stated:

2. [50]

   The plaintiff’s written submissions do not formulate a “question of law alone”. In the course of oral argument (at Tcpt 25 May 2018, p 26 lines 6-10) counsel adopted an expression of the pure question of law upon which the plaintiff wishes to appeal, to this effect:

3. [51]

   The plaintiff contends that this question ought to be answered “no”. In the course of considering the alleged errors of law on the face of the record in connection with the claim for relief under s 69 of the Supreme Court Act, I have already answered it “yes”. I therefore need refer only briefly to the question whether leave to appeal ought to be granted. The principles upon which the Court determines whether to grant leave in respect of an interlocutory order made in summary criminal proceedings are the same as those applied by the Court of Criminal Appeal on an application for leave pursuant to s 5F of the Criminal Appeal Act 1912 (NSW): Franklin v Commissioner of Police [2018] NSWSC 310 at [20]-[21].

4. [52]

   In R v Dinh (2000) 120 A Crim R 42; [2000] NSWCCA 536 the principles were stated at [34] (Simpson and Howie JJ) as follows:

5. [53]

   Those statements have been approved in subsequent decisions and equivalent formulations of principle have been expressed: see for example R v Einfeld (2008) 71 NSWLR 31; [2008] NSWCCA 215 at [23]; NAR v PPC1 (2013) 224 A Crim R 535; [2013] NSWCCA 25 [14]-[17]. In the present case the learned magistrate’s decision on the relevant question of law is not attended with sufficient doubt to warrant it being argued on appeal. However, for convenience in view of the relatively simple nature of the proceedings, I have read the plaintiff’s written argument and heard oral argument on the question of law, in connection with other aspects of the case, and I have decided it. For that reason only I will grant leave. But the appeal will be dismissed.

6. [54]

   Had it not been necessary to decide the point of law in dealing with other aspects of the case I would not grant leave at all. In addition to the lack of merit in the legal argument there is the absence of any significant likelihood of injustice to the plaintiff if the prosecution in the Local Court should simply take its course, even if the magistrate was in error in concluding that the letter of 26 May 2016 was valid notice to the plaintiff: see [48]. Determination of the “question of law alone”, as propounded on the application for leave to appeal, would not bring the proceedings in the Local Court to an end.

7. [55]

   Further, should the magistrate find the plaintiff guilty as charged without having considered exclusion of the evidence derived through the Inspector’s examination (because of her Honour’s ruling that the notice for the plaintiff to attend was valid), it will be open to the plaintiff to agitate this issue in exercise of her appeal rights. A conviction may be appealed to the District Court or to this Court under the Crimes (Appeal and Review) Act.

Orders

1. [56]

   For the above reasons the orders of the Court are:

   1. (1)

      Leave to appeal is granted pursuant to s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW).

   2. (2)

      The appeal is dismissed and the further amended summons in all other respects is dismissed.

   3. (3)

      The plaintiff is to pay the costs of the first defendant.